The topic of “illegal” immigration has been a major aspect of public discourse in the United States and many other immigrant-receiving countries. From the beginning of its modern invocation in the early twentieth century (Ngai Reference Ngai2004), the often ill-defined epithet of human illegality has figured prominently in the media; vigorous public debates at the national, state and local levels; and in presidential campaigns. For more than a quarter century now, the term illegal alien has served as euphemism, placeholder, rallying cry, and Rorschach test despite (and, perhaps, because of) its multiplicity of meanings. Policy discussions that purport to focus on the impact that unauthorized migrant laborers may have on domestic workers, unemployment rates, the availability of finite social and economic resources for all who need them within a territory, and the impact of migration on the social and cultural fabric of the nation often invoke or critique the concept with an astonishing lack of focus or precision. Though rather technical legal constructs usually undergird such debates, public discourse routinely takes on a tenor of rough morality, differentiating behaviors and practices that should be rewarded, such as staying in the queue and entering the country legally, from those that presumably deserve penalty, such as “jumping the queue” and “sneaking” into the country “illegally.”

Illegality is a peculiarly powerful but amorphous legal concept. It marks a specific allegation by government enforcement agents, investigators, and prosecutors of a particular type of conduct. Allegations alone, however, cannot create illegality. As a technically precise legal conclusion, forensic illegality always requires legitimate processes and proof. A person arrested for an alleged crime will achieve a certain preliminary connection to illegality if there is some reasonable (or, as the legal system sometimes calls it “probable”) cause shown to justify the arrest. The results may surely be serious and wide-ranging (e.g., detention, loss of employment, loss of public housing, and ostracism) but they are deemed tentative.

Conclusive proof of illegal conduct requires considerably more than this. This is especially so when the allegation of a violation of law is deemed to be “criminal” or when the sanction is deemed to be “punishment.” (The precise line between the civil and the criminal or between the regulatory and the punitive is often a complex inquiry for constitutional and other legal purposes.) Every mature legal system, whether inquisitorial or adversarial, imposes the most elaborate procedures and the highest standards of proof on those who allege violations of laws that – if proven – can justify punishment. In the United States, as in most modern legal systems, these procedures and burdens of proof apply regardless of the status of the accused. It is conduct that counts, not legal status. In immigration law, however, the relationship between conduct and status is inherently quite complicated. Noncitizens (a legal status category) may face removal proceedings for conduct (e.g., for having crossed the border without proper documents or without legal inspection, or for having violated some other criminal or immigration law) or simply for lacking legal immigration status due to a wide variety of reasons, some having to do with affirmative conduct; not doing some required act (e.g., filing an application for status); or with simply being in the United States after having been brought to the country as children. Moreover, much public discourse and even some court decisions are unclear about whether deportation is punishment, even though deportation has been described as “a particularly severe penalty,” especially in cases of lawful permanent residents facing deportation.¹

In most other legal arenas, illegality is not generally understood as an existential condition. Outside of immigration law, one is hard-pressed to find examples, though such highly charged classifications as those of “sex offenders” provide a disturbing analogy. The reasons for this are deep and fundamental. To accept the idea of “illegal” people is inevitably to risk accepting problematic and dangerous forms of castes. As the Supreme Court noted in the 1982 case² that held that the undocumented children of undocumented noncitizens in Texas had a right to public school education, “sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens,” had led to the creation of a substantial “shadow population” within our borders. The Court recognized that this situation raised “the specter of a permanent caste of undocumented resident aliens” and that such an “underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”³

Once one accepts the existence of an “illegal” caste, the questions relevant to the broader society become distressingly simple and utilitarian: What are the appropriate forms of judgment, ostracism, and sanction? Such a model obviously contradicts important ideals of equality and human dignity that undergird the better traditions and most basic moral and legal principles of the country. Further, the U.S. legal system does not generally accept the idea of illegal conduct without possibility of redemption, except for the worst sorts of crimes. Even in such cases, many countries have deemed the death penalty and life without parole to be unduly harsh sanctions, beyond the pale of modern human rights understandings.

Much legal, historical, and sociological scholarship in recent years has sought to explain some of the technical complexities of “illegality” in this context, as well as to demonstrate how migrants may encounter legal complexities in a wide variety of settings that contradict the simple notion of purposeful border crossing (see, e.g., Ngai Reference Ngai2004; Martin Reference Martin2005). Moreover, as Hiroshi Motomura (Reference Motomura2008) has shown, immigration law consists not only of enforcement mechanisms, but also of the ways in which we choose not to enforce legal restrictions. In this regard, “illegality” should be considered in light of the U.S. economy’s long-standing reliance on undocumented workers and deep historical patterns of movement and recruitment. However, as several chapters in this volume make clear (see, e.g., De Genova, Chapter 2; Heyman, Chapter 5; Hing, Chapter 15), active profiting and recruitment have also long been part of the story of “illegal” immigration in the United States.

Despite the long and complex history of immigrant “illegality,” current discussions of legalization and amnesty frequently ignore the historical permeability of the line between “legal” and “illegal” categories. The various forms of discretionary relief from removal, and types of legalization and amnesty – such as asylum, suspension of deportation, cancellation of removal, Temporary Protected Status, the Violence Against Women Act, the Cuban Adjustment Act, the Nicaraguan Adjustment and Central American Relief Act, and the Haitian Refugee Immigration Fairness Act – continue to blur these lines today, so that many immigrants with these dispensations may find themselves straddling both, in in-between statuses or in liminal legality (Menjívar Reference Menjívar2006).

Constructions of “Immigrant Illegality”

This book, in brief, seeks to develop an interdisciplinary critical interrogation of the category of “immigrant illegality,” focusing on the condition and production of illegality, so as to denaturalize it and to shed light on its complexity.⁴ As matters of immigration are by their very nature interdisciplinary, contributors range from the fields of anthropology, law, political science, religious studies, and sociology to examine how the law makes and unmakes immigrant “illegality” and how this category is deployed and its power wielded. Through analyzing and dissecting this category (if not debunking it) its constructed nature and the nuances and complexities it involves are exposed.

Let us be clear: it is not our aim in this volume to settle immigration policy debates about admissions, removals, state enforcement, or legalization plans conclusively. We do suggest, however, that this widely deployed concept of immigrant “illegality,” often used liberally and carelessly in uncritical fashion, is in need of thorough, sustained critique and that such careful analysis will aid policy discussions. The chapters in this volume shed light on the detrimental short- and long-term effects for immigrants who now live in spaces of illegality, for their families and communities, and for the country as a whole.⁵ Our examination therefore can help policy makers to think carefully about the kind of immigration policy the country needs. Thus we confront the category of “immigrant illegality” directly, critically, and holistically.⁶ Such analysis must include the concept’s history, various meanings, often-tortured constructions, various expressions, and the ideological work that maintains it. Importantly, though, we must also consider its effects on those who live in this category, as well as the development of organized resistance to it. A critical examination of how this category has emerged, is used, constructed, lived, and resisted should not be seen as reifying it. This is a dynamic inquiry, which must evolve with the times and with the fluid (if often distressing) movement of public discourse.

Thus we emphasize that our examination focuses on this category today, as the law has moved to encompass increasingly more individuals under this category, affecting a wider range of groups in society. With the increasing coupling of immigration matters with criminal law (see Stumpf Reference Stumpf2006), the effects for individuals living in this category today may differ significantly from experiences of the past. For these reasons, rather than circumvent it or examine it only indirectly through the effects that legal status may have on immigrants’ lives, we make this category the focus of examination. Our hope is that this direct approach will contribute theoretically to our understandings of immigrant illegality/legality and the ideological constructions that underpin the contemporary immigration regime (see Rodriguez and Paredes, Chapter 3), which at the same time can help to develop a more solid basis for a serious conversation about true immigration reform. For this reason, each chapter contains a section on reflections for future research.

We are not the first to call attention to the “constructedness” of the category of “illegality” (see, e.g., Ackerman 2012; De Genova Reference De Genova2002). In recent years an important body of work on migrant illegality has emerged in various immigrant-receiving countries. These new approaches focus, as we do, on illegality as historically and legally produced and changeable (Goldring, Berenstein, and Bernhard Reference Goldring, Berenstein and Bernhard2009; Moloney Reference Moloney2012).⁷ Some scholars have thus sought to interrogate the category by critically examining its roots, focusing on how legal structures produce categories of illegality and on the experiences of those who live in these spaces in various national contexts, groups, and historical periods. Importantly, much of this new scholarship has called for a shift in focus from individuals as “bearers of illegality” to the laws that create these legal categories and produce “illegal aliens” (Ngai Reference Ngai2004) and the sociopolitical contexts within which these existential allegations of illegality are constructed (Massey, Durand, and Malone Reference Massey, Durand and Malone2002; Sassen Reference Sassen2002).

Important work also has focused on the relationship between mass incarceration, penal severity, and immigration enforcement (Inda Reference Inda2006; Inda and Dowling Reference Inda, Julie Dowling, Dowling and Inda2013; Mele and Miller Reference Mele and Miller2005; Miller Reference Miller, Mauer and Chesney-Lind2002, Reference Miller2010). As scholarship has highlighted the increasing convergence between the immigration and criminal justice systems, legal scholars have focused on questions about constitutional standards, as well as norms of proportionality (Kanstroom Reference Kanstroom2000, Reference Kanstroom2011; Meissner et al. Reference Meissner, Kerwin, Chishti and Bergeron2013; Stumpf Reference Stumpf2006, Reference Stumpf2009), and social science scholars have called attention to the broader consequences of this confluence on the lives of immigrants (Dowling and Inda Reference Dowling and Inda2013; Dreby Reference Dreby2012; Gonzalez and Chavez 2012; Hagan, Castro, and Rodriguez Reference Hagan2010; Kubrin, Zatz, and Martinez Reference Kubrin, Zatz and Martinez2012; Menjívar and Abrego Reference Menjívar and Abrego2012).

This growing literature comes from research conducted in major immigrant-receiving countries in the world. Some scholars have examined the production of illegality through the law among Mexican immigrants in the United States (De Genova Reference De Genova2002, Reference De Genova2004) and how formal processes that “irregularize” African immigrants in Italy and Spain exacerbate their vulnerabilities as workers (Calavita Reference Calavita2005). Emerging scholarship also has unveiled the embodied experiences and subjective meanings of living in illegality and the “interiorized mode of being” (Peutz and De Genova Reference Peutz, De Genova, De Genova and Peutz2010: 14) that living in illegality can produce, such as the phenomenology of undocumented Latin American immigration in Israel (Willen Reference Willen2007); the embodiment of experiences of “illegality” among Africans, Eastern Europeans, Brazilians, and Turks in Great Britain (Sigona Reference Sigona2012); how Mexican immigrants learn to “live as illegal aliens” in the United States (Chavez Reference Chavez1998; Gonzales Reference Gonzales2011; Gonzales and Chavez Reference Gonzales and Chavez2012); the duality that Salvadoran immigrants experience in the United States as being physically present but legally absent (Coutin Reference Coutin2000); and the suspended experiences of living in in-between legal statuses, in “liminal legality,” that Guatemalan and Salvadoran immigrants experience in the United States (Menjívar Reference Menjívar2006).

Variations in Experiences of “Illegality”

Recent social science scholarship on immigrant illegality highlights in particular the conditions created by legal structures. Migrants living in illegality, especially as the targets of new policies of deterrence in various immigrant-receiving contexts, experience the effect of law in various ways in a wide range of activities and with varying degrees of intensity, from highly constrained labor market opportunities and employment (Calavita Reference Calavita2005; Menjívar, Zotova, and Agadjanian n.d.; Takei, Saenz, and Li Reference Takei, Saenz and Li2009; Willen Reference Willen2007), to limited access to public and social services (Capps et al. Reference Capps, Castañeda, Chaudry and Santos2007; Geddes Reference Geddes2003; Goldring et al. Reference Goldring, Berenstein and Bernhard2009) often to avoid authorities and officials (Yoshikawa Reference Yoshikawa2011), to restrictions on accessing housing (McConnell and Marcelli Reference McConnell and Marcelli2007; van Meeteren Reference van Meeteren2010) and education (Gonzales Reference Gonzales2011), and even constraints on social activities and friendships (Sigona Reference Sigona2012). This scholarship also has pointed to the long-term consequences that irregular statuses impose on the life prospects of immigrants in the host society (Bean et al. forthcoming), effectively constituting new axes of stratification (Abrego and Gonzales Reference Abrego and Gonzales2010; Friedmann Marquardt et al. Reference Friedmann Marquardt, Steigenga, Williams and Vásquez2011; Menjívar and Abrego Reference Menjívar and Abrego2012; van Meeteren Reference van Meeteren2010), a situation that has spurred calls for more theoretical attention to legal status in patterns of immigrant incorporation or assimilation (see Kasinitz Reference Kasinitz2012).

While this varied literature has identified the deep and broad effects of “illegality” for individuals and families, it does not assume that these experiences are homogenous, static, and undifferentiated, as “they vary significantly along social cleavages” (Sigona Reference Sigona2012: 51). For instance, gender differences and legal statuses interact, so that women and men experience illegality in dissimilar ways (Salcido and Menjívar Reference Salcido and Menjívar2012; Schmalzbauer Reference Schmalzbauer2011). Similarly, stages in the life cycle shape how individuals experience illegality. The young and the old, and immigrants of different generations experience it in quite different ways (Abrego 2011; Abrego and Gonzales Reference Abrego and Gonzales2010; Gonzales Reference Gonzales2011). Young undocumented students may only “become illegal” (or recognize themselves in this way) after finishing high school and attempting to enter either higher education or the labor force (Dreby Reference Dreby2012; Gleeson and Gonzales Reference Gleeson and Gonzales2012; Gonzales Reference Gonzales2011), but remain fully aware of the stigma attached to this status (Abrego 2011). Legal status can also affect developmental outcomes, as illegality has been identified as a measurable risk that threatens the well-being of children and youth in significant ways (Santos, Menjívar, and Godfrey 2013; Suárez-Orozco et al. Reference Suárez-Orozco, Yoshikawa, Teranishi and Suárez-Orozco2011; Yoshikawa Reference Yoshikawa2011). The physical context in which individuals live can also mold experiences of illegality (Schmalzbauer n.d.), as state and local laws can vary within the same national context (see Armenta Reference Armenta2012; Boushey and Luedtke Reference Boushey and Luedtke2011; Steil and Vasi n.d.; Stewart 2012; Stewart and Quinn Reference Stewart and Quinn2012) and thus individuals living in different states will experience illegality dissimilarly. Finally, social cleavages shape not only how individuals experience illegality but how they have responded, organized, and mobilized to lobby for regularization efforts and to address to the predicament in which they find themselves (Hondagneu-Sotelo Reference Hondagneu-Sotelo2008; Nicholls 2013; Pantoja, Menjívar, and Magaña Reference Pantoja, Menjívar and Magaña2008; Voss and Bloemraad Reference Voss and Bloemraad2011).

Foci of the Book

The present volume builds on this rich literature to examine a wide range of aspects of immigrant illegality – how it has been defined, redefined, produced, and maintained. The contributors also consider what it means to live in categories of “illegality” in the U.S. context today as well as its contradictions. For instance, in the first years of the Obama administration, the numbers of deportations have risen dramatically, even as enforcement has shifted from visible workplace raids targeting undocumented workers to so-called criminal aliens (another complex and potentially misleading category). And whereas it is critical to investigate the effects of the law on individuals’ experiences, we must also examine the forms of resistance that develop out of these conditions (see Chavez, Chapter 4). As Michel Foucault (Reference Foucault1979) asserted, not only are examinations of the power of the law most fruitful at the level of lived experiences, but also it is here that key sites of resistance develop, as “power can produce the very thing that comes to resist it” (Pickett Reference Pickett1996: 458). Thus contributors to this volume also focus on the various forms of resistance and responses to the current legal system. This broad approach allows us to add theoretical nuance and methodological innovation to the study of this phenomenon and to critically analyze it (and debunk it). It also permits us to identify practical, policy-relevant implications. Although cases from various other national contexts (or from different historical periods in the United States) are useful as comparative background, in this volume we focus on the contemporary case of the United States so as to set precise analytical parameters for a coherent presentation and to provide an in-depth case examination that will likely be relevant elsewhere. Thus we do not simply ignore similar issues arising in other major immigrant-receiving countries or different experiences in other historical or contemporary contexts. Keeping in mind that the category of “illegality” is flexible and fluid and that it can be lived and defined differently across time and space (cf. Ackerman 2012), our main goal in this volume is, nevertheless, domestically focused.

Along these lines, this volume considers closely the following aspects of immigrant “illegality”:First, we recognize that the binary categories of “undocumented” and “documented” or “authorized” and “unauthorized” often used to study the effects of legal status on immigrants’ experiences have become problematic in contemporary analyses of the experience of illegality/legality.⁸ Not only do they reify bureaucratic classifications that often fail to match lived experiences,⁹ but such dichotomies also fall short when applying them to national contexts with different modes of legal entry and policies, as in the case of Canada (see Goldring et al. Reference Goldring, Berenstein and Bernhard2009). In this light, we would like to remind the reader of the blurring of strict demarcations between these binaries, which in themselves are the result of legal and political constructions of immigrant illegality. Thus we give primacy to experiences of “liminal legality” (Menjívar Reference Menjívar2006), “precarious statuses” (Goldring et al. Reference Goldring, Berenstein and Bernhard2009), or “permanent temporariness” (Bailey et al. 2002) to highlight the blurring of these legal categories. Recognizing these in-between, gray zones of illegality helps us to capture today’s experiences, question taken-for-granted dichotomies that grow out of political maneuvers, and problematize – following Bosniak (Reference Bosniak2000) – approaches that seek to clearly demarcate citizenship (and belonging) and alienage. Questions about belonging, citizenship, and rights to territorial presence are key axes of analysis in this volume because illegality can only be understood in relation to citizenship and belonging.

Second, and related, an important aspect of our approach is to decouple the common (and often simplistic) association between the category of “illegality” and undocumented status. The current immigration regime creates a welter of “in-between” legal statuses and deports tens of thousands of permanent legal residents (green card holders) each year, including army veterans,¹⁰ as well as many people with temporary visas, such as students and temporary workers. The current immigration regime has made possible shifts into categories of “illegality” and a progressive erosion of rights among a larger group, beyond undocumented immigrants. It also renders millions of U.S. citizens – spouses, partners, parents, and children of potential and actual deportees – uncertain of where they will live or with whom. Thus we also consider the effects of deportation on U.S. families and communities. For instance, the Pew Hispanic Center estimates that approximately 4.5 million children of undocumented parents are U.S. citizens (Passel and Cohn Reference Passel and Cohn2011). With increased deportations in recent years, tens of thousands of these children have seen their families split or have experienced the effective deportation of the entire family to what, for them, are foreign countries (see Medina Reference Medina2011).The harm to a U.S. citizen child in these circumstances has been well described as “palpable and long-lasting” (Kremer, Moccio, and Hammell Reference Kremer, Moccio and Hammell2009). And as Yoshikawa (Reference Yoshikawa2011: 2) observes, “[m]illions of the youngest citizens in the United States, simply by virtue of being born to a parent with a particular legal status, have less access to learning opportunities that are the building blocks of adult productivity.”

Thus, whereas we may think of undocumented persons as the only ones living in this alleged condition of illegality, the current legal regime has made it possible for millions of “documented” individuals and U.S. citizens to either experience the effects of the conditions that illegality imposes or to be directly included in this category (Hagan, Rodriguez, and Castro 2011). This is particularly the case of permanent legal residents who have lived most of their lives in the United States and are deported to a country they hardly know because at some point in their lives they committed a crime (Golash-Boza, Chapter 9; Kanstroom Reference Kanstroom2007, Reference Kanstroom2012). Indeed, the threat of deportation (see De Genova Reference De Genova2002) has been used with unprecedented vigor in the past few years to make even permanent legal residents vulnerable to deportation (Kanstroom Reference Kanstroom2007, Reference Kanstroom2012). Although precise numbers are not known, researchers have estimated (from Department of Homeland Security [DHS] data) that some eighty-eight thousand lawful permanent residents were deported for criminal convictions from 1997 to 2007 (Baum, Jones, and Barry Reference Baum, Jones and Barry2010). Human Rights Watch (2009) has concluded that nearly 70 percent of such deportations were for relatively minor, nonviolent offenses. In 2011 alone, some 188,000 “known criminal aliens” were removed from the United States, many of whom were lawful permanent residents and were in the “criminal alien” category only because they had been prosecuted for immigration violations that in prior years were routinely handled through civil deportation processes.¹¹

Current laws also make it possible for a wide swath of the U.S. citizen population to feel the effects of stringent immigration laws, particularly deportation. For instance, as the Obama administration has deported more immigrants per year than any other administration in U.S. history, around four hundred thousand per year, new programs under Immigration and Customs Enforcement (ICE) Agreements of Cooperation in Communities to Enhance Safety and Security (ACCESS) have created systems by which U.S. citizens may also be detained and questioned (Kohli, Markowitz, and Chavez Reference Kohli, Markowitz and Chavez2011). By increasing the likelihood of individuals coming into contact with law enforcement, these programs have significantly increased the policing of immigrants and immigrant communities in the interior of the country (see Kanstroom Reference Kanstroom2012). These new immigration and deportation laws and policies have had spillover effects that not only reach well beyond the “targeted” immigrants (presumably, the undocumented) but also the “documented” who have been moved into the category of “illegality,” making it increasingly difficult to separate neatly citizenship from alienage and significantly expanding the category of “illegality.” Thus the Obama administration’s “smart enforcement” strategy (that focuses on criminal deportations) has contributed to the expansion of the category of those who may now be deemed “illegal,” even though their immigration papers may seem to be in perfect order.

Third, in calling attention to “fuzzy” spaces between dichotomous legal statuses we also note new forms of “liminal legality,” some of which are associated with the widely practiced strategy of deportation, the “deportation turn” in Gibney’s term (Reference Gibney2008), while others come simply from living in legal limbo in the United States. The latter are related to new strategies in the current legal system whereby some individuals will not be deported but at the same time will not be allowed to regularize their statuses formally. This is the case of the decision by the Obama administration in August 2011 to review three hundred thousand cases to determine whether to pursue removal using prosecutorial discretion to suspend the removal of low-priority cases (adults without criminal records and those brought in as young children), and to focus its increasingly strenuous deportation efforts on “criminal aliens.” The more recent Deferred Action for Childhood Arrivals (DACA) program, approved in June 2012, which allows certain individuals to request deferred action (i.e., a decision not to proceed with any removal mechanisms) for a period of two years, subject to renewal – provided they meet certain criteria – is similar in this regard. While those covered under DACA, or others not categorized as criminals, may no longer be deportable, they will not be legalized either (and their status will remain uncertain),¹² a situation that accentuates their liminally legal position, and a legal action that creates a separate class of individuals in society. Thus, whereas undocumented youth have mounted campaigns of various kinds to plead for the right to regularize their status, mostly under the self-identification of DREAMers (Development, Relief, and Education for Alien Minors [DREAM]; see Nicholls, Chapter 10), they will continue to live inside the country but in spaces of illegality, in a gray zone of nondeportability but also of exclusion (see Chavez, Chapter 4).

Fourth, we examine the far-reaching consequences of immigration laws beyond the national territory in which they are enacted. Bosniak (Reference Bosniak1991, Reference Bosniak1998, Reference Bosniak2000) has noted that citizenship as legal status remains a largely national enterprise because the very designations of “legal,” “undocumented,” “regular,” and “irregular” are intelligible only by reference to both the rule of state territorial sovereignty and its limitations. However, with increased deportations, including those of permanent legal residents, the effects of U.S. immigration laws reach individuals beyond U.S. physical borders (Hagan, Castro, and Rodriguez Reference Hagan2010; Kanstroom Reference Kanstroom2012; McKenzie and Menjívar Reference McKenzie and Menjívar2011; Menjívar and Abrego Reference Menjívar and Abrego2012). Immigration laws enacted in a regional center of power, such as the United States, spill out to engulf the lives of the nonmigrant relatives and communities in countries from which immigrants originate (see also Coleman 2007; Massey Reference Massey2007; McKenzie and Menjívar Reference McKenzie and Menjívar2011). As these effects and potential consequences abroad can be quite extensive, we see a real need – beyond U.S. borders as well as within the United States – to note the broad reach, beyond territorial borders, of constructions of illegality in the United States today.

Fifth, while we point to the far-reaching effects of U.S. laws beyond U.S. territory, this volume also reveals how border enforcement has expanded from the physical control of the border to the interior of the country through the use of a vast network of state technology that enables border and interior social control (Kanstroom Reference Kanstroom2007, Reference Kanstroom2012). Although enforcement at the physical border (especially the Mexico-U.S. border) still takes up a large proportion of resources in immigration control (see Heyman, Chapter 5) as well as in public discourse and media representations (see Chavez, Chapter 4) and has profound consequences for migratory flows and settlement patterns today (Massey et al. Reference Massey, Durand and Malone2002), there are now new borders created by policies that control immigrants in the interior of the country, curtailing access to resources in order to make these immigrants’ lives so difficult that they will “self deport.” The control of the interior has been made possible through the passing and implementation of state-level laws (see Provine and Lewis, Chapter 13; Kerwin, Chapter 14) and by the DHS’s border security policies detailed in DHS official documents that treat the interior as a “continuum of border security” in post-9/11 enforcement programs (Department of Homeland Security 2003) and it rests largely on the immigrants’ deportability, that is, the possibility of deportation rather than actual deportation (De Genova 2002).¹³

And last, as we have noted and the chapters in this volume will corroborate, illegality deeply inflects most of what immigrants do now as well as their long-term prospects and life chances in multiple ways (Massey Reference Massey2007; Menjívar and Abrego Reference Menjívar and Abrego2012; Yoshikawa Reference Yoshikawa2011). However, whereas we must give attention to the devastating effects of illegality we also should acknowledge the possibilities for resistance and activism among various sectors of society that this condition has created (see Nicholls Reference Nicholls2013; Pallares and Flores-González Reference Pallares and Florez-González2010; Voss and Bloemraad Reference Voss and Bloemraad2011). Various groups, composed of citizens, immigrants and nonimmigrants alike, work to redefine this category of “illegality” by pointing to the rights of immigrants and to the humanity of the individuals affected, as religious groups have been advocating (Hondagneu-Sotelo Reference Hondagneu-Sotelo2008; Friedmann Marquardt, Snyder, and Vásquez, Chapter 12). These efforts seek to put a human face on the immigrants who are pushed into illegality and to demand their dignity, respect, and recognition. As such, they contribute to debunk and denaturalize this category.

Thus we begin this volume with the basic, rather technical question of how law creates immigrant “illegality.” The law – both by definition and by its enforcement and nonenforcement choices – may construct individuals as presumptively “illegal.” This is most obviously the case of the border. On the southern border, we have long seen such ostentatious enforcement mechanisms as high-tech surveillance, 650 miles of walls and fences, the deployment of National Guard soldiers, and dramatic increases in spending, calculated at about $10 billion in the ten years post-9/11, tripling the pre-9/11 budget (Meissner et al. Reference Meissner, Kerwin, Chishti and Bergeron2013; Mendoza Reference Mendoza2011). However, as we noted earlier, the reality has been one of selective underenforcement and direct recruitment (see De Genova, Chapter 2), with little indication of whether the current architecture of enforcement has successfully kept immigrants out (see Roberts, Alden and Whitley 2013). Though the estimated numbers of undocumented individuals who reside in the United States have declined somewhat in recent years, the reasons seem more related to the economic recession than to enforcement alone. As the editors of the New York Times noted (2010), surveying the some eleven million people who still lived out of status in the United States, “They are not flooding in as much, but they are not flooding out.” And a recent report by the Council on Foreign Relations (Roberts et al. 2013) notes that although the U.S. government makes public detailed information on the “inputs” to enforcement (e.g., amount spent, type of surveillance equipment, and size of personnel), it “does not report most outputs … or outcomes” (2013: 2). Thus, despite astronomical increases in border enforcement spending, there are no data on a wide range of output measures, a puzzling situation given the DHS’s mission (2013).

In keeping with the critical focus of this book, we would like to call attention to the expansion of the “illegal” category that is not due to an increase in the numbers of individuals coming in, but rather through changes in the law, as more individuals are “irregularized” through various legal channels. The vast and complex array of internal enforcement laws and practices in recent years have placed increasing numbers and more diverse categories of individuals within the “illegal” category, as excludable and unsuitable for legal residence or citizenship (Peutz and De Genova Reference Peutz, De Genova, De Genova and Peutz2010). The most important legal changes that have made this situation possible took place in 1996, when two laws known by their acronyms, AEDPA (Antiterrorism and Effective Death Penalty Act) and IIRIRA (Illegal Immigration Reform and Immigrant Responsibility Act), reconfigured the U.S. deportation system. ¹⁴

The 1996 laws, which were passed in the chaotic aftermath of the Oklahoma City bombing, embodied a prosecutorial wishlist that had awaited the most propitious moment to advance. Importantly, the fact that these laws were passed in the aftermath of a domestic terrorist attack points to the increasing trend of associating immigrants and immigration with terrorism, even before the 9/11 attacks.¹⁵ (For an overview of the 1996 IIRIRA see Fragomen Reference Fragomen1997; as to AEDPA see American Immigration Lawyers Association 1997. See also De Genova, Chapter 2.) These laws include provisions that:

1. Radically changed and expanded grounds of exclusion and deportation;¹⁶

2. Retroactively expanded many criminal grounds of deportation;¹⁷

3. Eliminated some and limited other discretionary waivers of deportability;¹⁸

4. Created mandatory detention for many classes of noncitizens;¹⁹

5. Expedited deportation procedures for certain types of cases;²⁰

6. Eliminated judicial review of certain types of deportation (removal) orders;²¹

7. Vastly increased possible state and local law enforcement involvement in deportation, through the creation of § 287(g), which is discussed in more detail in the following text;²² and

8. Created a new type of streamlined “removal” proceeding – permitting the use of secret evidence – for noncitizens accused of “terrorist” activity.²³

As a direct result of these laws, hundreds of thousands of people who would have been allowed to become or to remain legal permanent residents and (probably) naturalized citizens under prior laws have been excluded and deported from the United States.²⁴ For instance, the year before IIRIRA passed there were a total of 69,680 deportations. This figure has increased steadily, reaching unprecedented highs of 392,000 in 2009 (Department of Homeland Security 2010) to 396,906 in fiscal year 2011 to a staggering 409,849 removals in fiscal year 2012. It is noteworthy that, of the more than four hundred thousand people removed in fiscal year 2012, some 55 percent (225,390) had reportedly been convicted of felonies or misdemeanors (Immigration and Customs Enforcement 2012). Most of these “criminal” deportees, however, fell under so-called priority categories that include individuals who crossed the border recently, those who failed to show up to immigration court, and repeat violators of immigration infractions. In recent years, many more such people have been criminally prosecuted for these acts, which in turn accounts for their placement in the category of “criminal aliens.” The redefinition of such behaviors as crimes highlights the increasing confluence of immigration law and criminal law (see Stumpf Reference Stumpf2006). Moreover, one must keep in mind the increase in criminal prosecution of immigration offenses as key to the expansion of the category of “illegality.” Simply put, the immigration enforcement system, as a whole, which was already huge, has evolved and grown dramatically over a very short historical time span. As a recent, major study has noted, “a philosophy known as ‘enforcement first’ has become de facto the nation’s singular response to illegal immigration …” (Meissner et al. Reference Meissner, Kerwin, Chishti and Bergeron2013: 1).

Detention is also a major part of the enforcement story. ICE has come to operate the largest detention and supervised release program in the country.²⁵ The average daily population of detained noncitizens has exploded, from approximately 5,500 in 1994 to 19,500 in 2001 (Detention Watch Network n.d.). By 2009, ICE had some thirty-one thousand noncitizens in detention in any one day at more than three hundred facilities throughout the United States and its territories, with an additional 19,169 people in supervised “Alternative to Detention programs.”²⁶ In 2011, ICE detained approximately 429,000 people, an all-time high (Simanski and Sapp Reference Simanski and Sapp2012).²⁷

Deportation, another important component of the enforcement story, is arguably the ultimate form of exclusion. The surge in deportations has followed a similar trend. Increasing every year, deportations have gone from 69,680 the year before IIRIRA passed to a record of 396,906 in fiscal year 2011 (Menjívar and Abrego Reference Menjívar and Abrego2012), and then, as noted previously, to more than four hundred thousand. Moreover, deportations are disproportionately skewed by country of origin: Mexico, Honduras, Guatemala, and El Salvador have accounted for some 91 percent of total deportations, a steady trend for a decade as these countries have accounted for between 87 and 91 percent of annual deportations since 2001 (McCombs Reference McCombs2011). (The empirical chapters in Parts II and III focus on these four nationality groups.) Except for Mexico, which leads by a large margin in both the number of deportations and the number of immigrants in the United States in general, the number of deportations among Guatemalans, Hondurans, and Salvadorans is hugely disproportionate to the size of these immigrant populations in the United States. These observations illustrate how race, national origin, and ethnicity remain crucially important to the study of immigrant illegality.

The legal foundations of U.S. immigration law were set by the Supreme Court in cases infected by complicated, anti-Chinese racism (Kanstroom Reference Kanstroom2007). Today, the story is somewhat more complex but the rise in deportations since the 1980s has clearly focused more on certain types of noncitizens (from certain nationalities) than on others, and it has paralleled other racially charged mechanisms as the so-called war on drugs and the vast increase of disenfranchisement of African American men convicted of crimes (see Alexander 2012; Pettit 2012; Western 2002).²⁸ This has been especially clear in the case of deportations for crime, where the racial focus of the criminal justice system has led to disproportionately high numbers of removals of young men of color (see also Golash-Boza 2010–11, Reference Golash-Boza2012).

The new model of federal/state partnership created by IIRIRA in 1996, and codified as § 287(g) of the Immigration and Nationality Act, deserves special mention, even though this partnership will no longer be in effect as of January 2013. ICE decided not to renew any of its § 287(g) agreements, which expired on December 31, 2012 (Immigration and Customs Enforcement 2012), mostly because other programs in place, such as Secure Communities, were found to be “a more efficient use of resources for focusing on priority cases” (Immigration and Customs Enforcement 2012). However, § 287(g) was a key program in the expansion of immigration enforcement. This program authorized DHS to enter into agreements with state and local law enforcement agencies, thereby permitting state and local officers to perform immigration law enforcement functions, albeit under the supervision of federal agents. According to ICE, the cross-designation allowed local and state officers the resources and latitude to pursue investigations “relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering” (Immigration and Customs Enforcement n.d.). The participating entities were eligible for increased resources and support after signing a Memorandum of Agreement that outlined the authority to be designated.²⁹ The concept was always controversial, facing criticism from both the right – on states’ rights grounds – and the left – on civil liberties and human rights grounds. Even though it had been the law since IIRIRA 1996, the federal government did not enter into any § 287(g) agreements with state or local jurisdictions until after the 9/11 attacks. By 2006, however, increased interest in interior immigration enforcement on the part of the federal government and at the state and local levels (as well as increased federal funding) had spurred substantial growth in the program. Funding increased from $5 million per year in 2002 to around $68 million in 2006,³⁰ and ICE trained and certified more than 1,240 state and local officers to enforce immigration law.³¹ DHS came to describe the program as a valuable “force multiplier” and expanded it energetically.³² By 2011, ICE had agreements with some sixty-nine law enforcement agencies in twenty-four states. ICE credited the program, since January 2006, with identifying more than 200,300 “potentially removable aliens” mostly at local jails (Immigration and Customs Enforcement n.d).

Furthermore, the recent so-called smart immigration enforcement initiatives have raised a new set of issues that contributes to the enlargement of the “illegal” category. A major new postentry social control deportation system is Secure Communities, a program introduced in 2008 to further strengthen the collaboration between federal and local law enforcement created through the § 287(g) agreement.³³ This program is frequently described by ICE and its law enforcement partners simply as a “comprehensive strategy to improve and modernize the identification and removal of criminal aliens from the United States.”³⁴ The program essentially involves enhanced technological cooperation between state and local police and ICE and other federal law enforcement agencies. Such cooperation, often supported as an efficiency measure, also has raised serious concerns about how targets of enforcement are selected, especially young men of color in urban settings (see also Chacón Reference Chacón2007).

In contrast to § 287(g), which was voluntary and up to the municipalities that sought to enter into such an agreement with federal law enforcement agencies, Secure Communities is mandatory and expected to be implemented in all jurisdictions nationwide by the end of 2013. Under this program, when an individual is booked into a jail, his or her fingerprints are checked against federal immigration-related databases to search for the individual’s criminal and immigration history. However, following concerns about racial profiling, distraction of police resources, negative impacts on community policing strategies, and the deportation of noncriminal undocumented individuals and low-level offenders, the Secure Communities program has attracted furious responses.³⁵ The governors of New York, Illinois, and Massachusetts have rejected the program due to concerns about whether it accomplishes its ostensible goals of deporting serious criminals. Still, in August 2011, ICE announced that it would continue to operate the Secure Communities program even without agreements from the jurisdictions in which it operates.³⁶ However, Secure Communities is just one of many so-called force multipliers programs that have been tried in recent years under ICE’s umbrella ACCESS, which are meant to augment the force of the law in unprecedented fashion by coordinating and strengthening enforcement at the various levels of government. As such, these programs significantly expand the reach of immigration policing as well as the numbers of immigrants who are pushed into the category of “illegality.” The present volume of undocumented immigrants in the country demonstrates how these various legal strategies, coordinated at the state and federal levels, contribute to creating populations of undocumented and quasidocumented individuals, and a situation that calls for new frameworks to examine the immigration system today and its effects on immigrants in the United States and beyond.